Calvin S. Secrest v. Sherman

Filing 3

ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY by Judge R. Gary Klausner. See order for details. (jy)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CALVIN S. SECREST,
Petitioner,

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v.
SHERMAN,
Respondent.

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CASE NO. CV 14-3948-RGK (PJW)
[PROPOSED] ORDER DISMISSING
SECOND OR SUCCESSIVE HABEAS CORPUS
PETITION AND DENYING CERTIFICATE
OF APPEALABILITY

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Before the Court is a Petition for Writ of Habeas Corpus in which

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Petitioner seeks to challenge a February 2002 sentence, following his

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conviction in Los Angeles County Superior Court for first degree

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robbery, possession of a gun, and evasion of police.

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This is the third time that Petitioner has attempted to challenge his

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sentence in this court.

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was dismissed because it was untimely.

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2291-RGK (JWJ), July 8, 2009 Order Accepting Report and Recommendation

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of United States Magistrate Judge.

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appeal the Court’s ruling, but his application for a certificate of

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appealability was denied.

See Secrest v. Kramer, No. 09-56300,

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February 28, 2011 Order.

In June 2012, Petitioner filed a second

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habeas petition challenging the 2002 sentence, which the Court

(Petition at 2.)

In 2009, he filed a habeas petition, which
See Secrest v. Kramer, CV 09-

Petitioner then attempted to

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dismissed as second or successive.

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4901-RGK (PJW), June 18, 2012 Order.

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sentence for a third time.

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See Secrest v. Brazelton, CV 12He now seeks to challenge that

A petition that is dismissed for untimeliness “presents a

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‘permanent and incurable’ bar to federal review of the underlying

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claims” and renders a subsequent petition second or successive.

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McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).

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from the Ninth Circuit, Petitioner may not bring a habeas petition

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challenging that sentence in this court.

Absent an order

See 28 U.S.C. § 2244; see

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also Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district

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court lacks jurisdiction to consider the merits of a second or

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successive petition absent prior authorization from the circuit

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court).

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For this reason, the Petition is dismissed.

Further, because Petitioner has not made a substantial showing of

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the denial of a constitutional right or that the court erred in its

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ruling, Petitioner is not entitled to a certificate of appealability.

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See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v.

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Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,

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484 (2000).

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IT IS SO ORDERED.

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DATED: May 29, 2014

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R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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Presented by:

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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C:\Temp\notesD30550\Ord_dismiss_successive pet.wpd

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